CHANDUBHAI MULJIBHAI VARLI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellant herein was original accused in Sessions Case No. 282 of 2002 [old Sessions Case No. 149/99] and came to be tried and convicted by the Ld. Addl. Sessions Judge, Valsad [for short 'the Ld. Trial Judge'] by judgment and order dated 11/10/2002 for the offence punishable under section 302 of the Indian Penal Code [for short 'ipc'] and was sentenced to undergo rigorous imprisonment [ri] for life and fine of Rs. 500/- and in default of payment of fine, simple imprisonment [si] for one month. However, he came to be acquitted for the offence punishable under section 342 of the IPC and section 135 of the Bombay Police Act [for short 'bp Act'].

(2.) THE prosecution case, in nutshell, is that both the accused and the deceased Somlabhai Vestabhai were doing business of fishing and they were sailors. Both were residing in the village Malav, Taluka Umargaon. It is the case of the prosecution that the accused had asked for monetary help from the deceased and deceased had paid Rs. 2,500/- by way of loan to the accused. Thereafter, on 3/7/1999 the accused demanded more money, to which the deceased refused. On account of such refusal, on 4/7/1999 at about 17. 30 hours, some quarrel took place between the accused and the deceased and during the quarrel, the deceased slapped the accused. It is the case of the prosecution that on the same day, at about 10. 00 p. m. , when the deceased along with his wife - first informant, Ramiben and daughter Sumitra were sleeping in their house, at that time the accused making hole in the Kachcha wall of the house of the deceased, entered into the house carrying chisel, a weapon having sharp blade with wooden handle. On account of the torch light, Sumitra and first informant Ramiben woke up and saw the accused standing near the cot of the deceased and inflicted a blow with chisel on the chest of the deceased. The accused covered the eyes of Ramiben with a muffler and then ran away from the house through the hole and locked the main door of the house from the outside. The first informant Ramiben removed the muffler and shouted and thereupon one Ganpatbhai, breaking open the lock, entered the house. Injured Somlabhai was removed to hospital, but was declared dead by the medical officer. Ramiben, widow of deceased Somlaben lodged the First Information Report [fir] with Umargaon Police Station, which came to be registered and police commenced investigation. Initially in the FIR first informant Ramiben though stated that accused was accompanied by 3 persons, police recorded her further statement and she stated that actually she saw the accused but she heard noise of steps and, therefore, it appeared to her that along with the accused there may be more persons. Panchnama of the scene of offence was drawn by the police. Weapon - chisel was discovered in presence of panchas at the instance of the accused. After collecting material evidence for the purpose of filing of the charge-sheet, the police filed charge-sheet in the Court of the Ld. Judicial Magistrate First Class, Umargaon. As the offence was exclusively triable by the Court of Sessions, the Ld. Magistrate committed the case to the Court of Sessions at Valsad. 2. 1. The Ld. Trial Judge framed charge at exh. 1 against the accused for the offences punishable under sections 302 and 342 of the IPC and section 135 of the BP Act, to which the accused did not plead guilty. The prosecution, therefore, adduced its oral and documentary evidence. After the completion of oral evidence adduced by the prosecution, the Ld. Trial Judge recorded further statement of the accused under section 313 of the Code of Criminal Procedure [cr. P. C] and the accused denied generally all the allegations levelled against him by the prosecution and stated that he was falsely implicated in this case. Considering the evidence adduced by the prosecution and the submissions made on behalf of both the sides, the Ld. Trial Judge came to the conclusion that though the prosecution case was based upon the testimony of solitary eye witness, the first informant Ramiben, being widow of the deceased, her testimony is reliable and trustworthy and came to the conclusion that the prosecution proved its case beyond reasonable doubt against the accused regarding the offence of murder punishable under section 302 of the IPC and recorded conviction accordingly.

(3.) LD. Advocate Mr. Rushabh Shah for learned advocate Mr. J B Pardiwala for the appellant submitted that the trial Court erred in relying upon the sole evidence of first informant Ramiben. Her testimony suffers from material inconsistency, improvement and omissions. It is submitted that though Ramiben admitted that at the time of incident, her daughter Sumitra woke up, but neither police recorded her statement nor she was examined as witness in this case. Similarly, listening the shouting of Ramiben, one neighbour Ganpatbhai came in the house allegedly breaking open lock applied on the outer side of the door of the house, but the prosecution did not examine such material eye witness in this case. It is further submitted that as per the FIR, the accused entered the house of the deceased along with 3 other persons. Police did not make any investigation about those 3 persons, but subsequently recorded further statement of first informant Ramiben to the effect that because of the noise of steps, it appeared to her that more than one persons had entered her house. It is submitted that before sleeping, the first informant had applied stopper inside the main door of her house and thus the door was closed from the inside. According to her FIR, she had seen the accused running away from her house though the hole in the Kachcha wall of her house. Therefore, it is submitted that the prosecution failed to explain the situation as to how the accused entered the house of the deceased and it has not been explained subsequently by the prosecution. That the so called discovery of weapon chisel has not been believed by the trial Court. Therefore, it is submitted that the appeal deserves acceptance and may be allowed.